Our new GLOBALCIT website is under construction. In the meantime, please use the current website as before.

Banishment, Australian style

  By Helen Irving and Rayner Thwaites (University of Sydney), EUDO CITIZENSHIP Collaborators

 

Motivated by the emergence of “home-grown” terrorism and the prospect that Australian citizens joining terrorist groups in Syria and Iraq may return to Australia, the Australian government (like many others) is seeking greater powers to revoke citizenship. 

Currently, Australian law, under the Citizenship Act 2007, provides for citizenship revocation (other than where citizenship by naturalization has been invalidly acquired) only where an Australian citizen “serves in the armed forces of a country at war with Australia” and holds another nationality.

A Bill designed to expand the grounds for citizenship revocation – the Australian Citizenship Amendment (Allegiance to Australia) Bill– was presented to the House of Representatives on 24 June 2015. That evening, the then Australian Prime Minister, Tony Abbott, declared: “Fighting for a terrorist group at war with Australia is the modern form of treason – and those who have left our country to fight against us may require a modern form of banishment.” Banishment, it seems, “is back”.

The Citizenship Amendment Bill was then referred to an inquiry by the multi-party Parliamentary Joint Committee on Intelligence and Security. The Committee received 43 public submissions, most of them critical of the Bill, and heard evidence from representatives of organisations and individuals (we gave evidence in early August), as well as relevant government departments and agencies. After several delays, the Committee issued its report on 4 September 2015. The report, over 180 pages in length, has recommended multiple changes to the Bill, largely in line with the criticisms received. In this post we introduce one particular issue the Bill raises in the context of Australia’s constitutional arrangements.

The Centrality of Allegiance to the Bill

The Citizenship Amendment Bill makes the concept of allegiance central to its justification and operation, and the Committee’s report has affirmed reliance on the concept. In the words of the Bill’s purpose provision the Bill is predicated on the view that

Australian citizenship is a common bond … [and] citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.

Australia’s Constitution does not define Australian citizenship, or make any direct reference to powers over citizenship law. Since the Australian federal parliament is a parliament of limited powers and can only legislate on the subjects allocated to it by the Constitution, another source of legislative power must be found for Australia’s citizenship law. The constitutional source is the “naturalization and aliens” power (section 51 (xix) of the Australian Constitution). The Bill’s reliance on allegiance aligns the law with the “aliens power” by treating citizens as the converse of aliens; the former are defined by allegiance to Australia, and the latter by lack of allegiance.  

As the Minister noted in the Explanatory Memorandum to the Bill, the High Court of Australia has consistently “found that an alien is a person who does not owe allegiance to Australia”. The government has sought to build on this formal definition. A terrorist, following the logic of the Bill, has demonstrably repudiated his or her allegiance to Australia and, ipso facto, cannot be a citizen. 

In addition to the constitutional work done by allegiance, it supplies the legal fiction that frames the Bill. The Bill relies on a concept of “constructive renunciation”: the citizen is deemed to have severed the constitutional bond through his or her own action. Revocation, in other words, merely formalises that which has already occurred through the (now former) citizen’s actions. 

The Bill introduces three mechanisms for revocation of citizenship. In the event of the Bill’s enactment, loss of citizenship would be automatic on the occurrence of any of the following: 

1.engaging in conduct defined with reference to terrorism offences in the Australian Criminal Code.

2.fighting for, or being in the service of, a specified terrorist organisation; or 

3.conviction for listed terrorism offences or “certain other” offences in the Criminal Code and the federal Crimes Act.

The first two revocation mechanisms are said to be “self-executing”, purportedly making it unnecessary to provide for any decision-maker. Revocation, as it appears in the Bill, just happens at the moment the relevant conduct is committed. 

The supposed “automaticity” of these two revocation mechanisms is designed to avoid constitutional difficulties. If the relevant Minister had effectively been empowered to determine whether an individual had committed a criminal offence, this would have breached the separation of powers. In the absence of a judicial ruling that criminal conduct had occurred, any decision by the Minister (or administrative officer) would, in effect, amount to an invalid exercise of judicial power. The initial solution has been to attempt to avoid these issues through the legal fiction that there is no decision-maker, the statute simply operating upon the conduct defined under the Act to effect revocation. 

This supposed “automaticity” was one of the major criticisms of the Bill before the Committee. We and others argued that as a matter of practical reality, somebody needs to reach a determination that the conduct triggering revocation of citizenship had occurred. (The envisaged administrative process has subsequently been outlined in evidence to the Committee from the Department of Immigration and Border Protection).

The Committee took note of these criticisms. It has recommended an expansion of the circumstances in which conviction by a court is a precondition to citizenship revocation. At the same time, the Committee faced the practical problem that gathering evidence and securing a conviction for conduct committed outside Australia, or after a citizen had left Australia, would often be difficult, both practically and jurisdictionally. The Committee, accordingly, recommended that the automatic “self-executing” revocation mechanism should continue to apply, but only when the conduct occurred in another country, or the individual in question had left Australia. In all other cases, it recommended that conviction by a court be a precondition for revocation. With respect to the types of conviction that would serve as a precondition to revocation, the Committee recommended that they be limited to offences carrying maximum penalties of more than ten years imprisonment (with the consequence that it recommended 7 offences be removed as potential preconditions for revocation), and that the individual have been sentenced to at least six years imprisonment. Where there was such a conviction, the Minister would have a discretionary power, subject to certain criteria, to determine whether citizenship revocation should follow. 

The Committee’s recommendations significantly narrow the scope of the revocation power contained in the Bill, and expand accountability for its exercise in both judicial and parliamentary fora. Although constitutional challenges may still arise in cases where an individual, “offshore”, has attracted citizenship revocation without a conviction, the Committee is to be commended for seeking the introduction of numerous rule of law protections absent from the Bill as initially presented to Parliament. 

Qualifications

The Citizenship Amendment Bill also includes a number of qualifying provisions, capturing important commitments on the part of the government. The revocation mechanisms apply only to those with an additional nationality. They apply equally to those who acquired their Australian citizenship by birth and those who acquired it by naturalization. 

The fact that the revocation provisions will apply to the conduct committed by persons of one class (dual nationals) while identical conduct committed by others (sole-nationals) will not attract revocation was another major source of criticism of the Bill before the Committee. The report did not make any recommendations to amend this feature of the Bill. The Australian government recognizes that it has international law obligations to protect against the creation of statelessness, and that accordingly it cannot strip sole nationals of their citizenship. The distinction between those with and those without an additional citizenship was regarded as unavoidable. While the extension of revocation to sole nationals was floated in a discussion paper, the Bill has stopped short of the type of legal scheme adopted in Britain, permitting citizenship revocation in cases where the Home Secretary merely has “reasonable grounds to believe” that a naturalized British citizen “could acquire another nationality.”.

Is Australian Citizenship Constitutionally Protected?

The concept of allegiance has always been central to the distinction between citizen and alien in Australian law, although it has taken a variety of forms in the jurisprudence of the High Court over the years. The Australian Citizenship Act, as noted, is currently limited in its provision for loss of citizenship acquired by birth. Its current provision, applying to persons who fight for a country at war with Australia, makes no express reference to allegiance, although its purpose, it appears, is to provide a consequence for disallegiant conduct. This provision has never been applied and the High Court has never had to rule on its validity. 

The Explanatory Memorandum to the Citizenship Amendment Bill notes that the 2006 case, Koroitamana v Commonwealth, confirmed a formal, statutory concept of both citizenship and alienage: “[A]n alien is a person who does not owe allegiance to Australia”, meaning simply that an alien is not a citizen, as defined under the Australian Citizenship Act. 

The formal conception of allegiance, we suggest, is not sufficient to support the mechanisms introduced by the Bill. The Bill relies on a substantive, multidimensional notion of disallegiance. Certain forms of conduct are defined under the Bill as “inconsistent with allegiance” to Australia and therefore triggering revocation. These dramatically extend the scope of the current provision for loss of citizenship. To define alienage with reference to a substantive concept of allegiance makes the holding of citizenship conditional. It makes the determination of whether a person is a citizen a two-part test: first, is the person eligible for citizenship under the formal rules found in the current legislation; and secondly, if formally eligible, is he or she otherwise disqualified for having committed prescribed conduct? This, of course, is the government’s intention.

If this more substantive conception of allegiance is endorsed, then presumably only conduct that represents demonstrable and intentional disallegiance could lead to citizenship revocation. As currently drafted, the Bill ties citizenship revocation to many offences that may be classified as disallegiant. These include acts of terrorism, being in the service of a declared terrorist organisation, or conviction for terrorism offences. But it also ties revocation to conduct that is arguably unrelated to a criterion of allegiance. The most controversial of these is the offence of “intentionally destroy[ing] or damage[ing] any property … belonging to the Commonwealth or to any public authority under the Commonwealth”. 

The Committee has recommended the removal of this particular offence (as well as seven other offences on the basis that they had a maximum sentence of less than 10 years) from the list of offences serving as a precondition for citizenship revocation. The Committee noted that there had been 171 convictions for damaging Commonwealth property since the start of 1990, with the conduct in question extending to writing graffiti, damaging defence and immigration detention facilities, cutting fences, damaging phone booths and telephones, destroying tax files, among others. The majority of these convictions did not attract a prison sentence. 

These recommendations appear to underline a commitment to tying citizenship revocation more tightly to disallegiance. The latter, however, remains difficult to define with precision. Fighting in the service of a country at war with Australia may be a clear case of disallegiance, but other conduct (including fighting with a terrorist organisation in and against another country) may be difficult to characterise as disallegiant to Australia. The focus on disallegiance, as noted, is necessary if the parliament is to make a valid constitutional connection between the citizenship revocation law and the constitutional head of legislative power. Otherwise, the legislation may amount simply to (re-)defining a citizen as an alien, without constitutional authority. The High Court has held that “Parliament cannot, simply by giving its own definition of ‘alien’, expand the [constitutional] power … to include persons who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word.” (Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002)).

This is not just a technical matter of constitutional doctrine. The issues raised by the Citizenship Amendment Bill, reflected in the multiple submissions to the Committee and in its lengthy and detailed report, are symptomatic of policy issues confronted by many governments today. Australia has taken note of legislative developments overseas, and the Committee’s report was drafted following a delegation of three members of the Committee to the United Kingdom, France and the United States, to learn about their legal regimes for dealing with terrorism, including citizenship revocation. It is encouraging that the Committee has resiled from the extremity of the Bill as initially presented to Parliament. The government is yet to respond.  

 

COMMENTS

Vesco Paskalev, 11/10/2015, 21:10: 

It is impressive how serious and sophisticated is the inquiry the Australian parliamentary committee conducts. And it seems to make a bigger difference than the similar committee of the House of Lords whose contestations resulted in only a token amendment to the British bill which enhanced the deprivation powers of their government last year. 

The substance of the issue is even more amazing. The Australian government makes allegiance central rationale (as if they have read Shai Lavi!). This argument is by far more convincing than ‘citizenship as a privilege’ which the British government floated. But on the other hand the consequences of the Australian grounds may reach much farther: for example they could strip the citizenship of all republicans who refuse to swear allegiance to the Queen (assuming that some Australians, e.g. soldiers, may have to do this). Their disloyalty is much clearer than that of someone who fights a third country, to which Australia is actually inimical.